Tuesday, November 18, 2008

War Crimes Trial

I believe that there are folk in the Bush administration who should be tried for war crimes. I'm not sure how high it should go, but perhaps as far as President Bush. I don't know whether he or anyone else should be found guilty but I think they should be tried. Here's why.

1. The data from Guantanamo seems to indicate that our government at the highest level is complicit in breaking international law.

2. If they are guilty, then a trial is the only way to restore the US's reputation.

3. If they are not guilty, a fair trial is the only way to restore the US's reputation.

It is critical for the moral standing of the US, to show that we do not see ourselves as above the law. Judge Patricia Wald, a judge in the War Crimes Tribunals for Yugoslavia, implied this question in her forward to Guantanamo and It's Aftermath, a study published by the Human Rights Center at the University of California at Berkeley, will the US hold itself to the same standards it imposes on other nations? It is critical for our standing in the world to restore our moral integrity. It is critical for our security to be able once again to say we are what we claim to be. It is critical that we put this dark history behind us. The only was to do so is to bring to trial those who are responsible.


Michael Mahoney said...

It has always been the stand of the United States' government that our security takes precedence over international law.

There were certainly abuses at Gitmo, and many of those responsible have already been brought to trial and many are service prison sentences. However, mark my words, no US citizen will stand trial before an international court, nor should they. As a matter of policy, no government official will ever be answerable to any non-US jurisdiction, especially for a matter of policy as opposed to an individual action.

Which leads us to the point of the credibility of the US courts in the eyes of the world. If anyone were to be acquitted, you can bet that the world press would be screaming "foul" at the top of their lungs.

fernando said...

"...our security takes precedence over international law."

The mantra of every rogue state. I just don't get why people in the US expect to be exempt from the standards they set for everyone else, then get upset when people around the world revile them for acting with impunity.

roy said...

Michael, you may be correct that US security (or at least perceived security) takes precedence over international law, or let me rephrase here - moral behavior - when it comes to our government's actions... but that doesn't mean that it should. If something is clearly immoral and against all international standards of behavior, then it is wrong whether or not some US administration agrees or not. And as Fernando said, if we expect others to abide by these standards of behavior, then we should at least go as far... and I would argue farther. You see, I believe in the ideals and the values upon which this nation is founded. If we abandon those values and ideals out of fear even if the fear is well founded, and I don't think it is, then the terrorists have already won. We have become something other than what we claim to be. At that point, we deserve any derision sent our way by people around the world.

Michael Mahoney said...

I don't for a minute support the idea that someone who committed a crime should not be punished. Any of these soldiers who abused prisoners for fun should be prosecuted to the fullest extent of the law.

U.S. law.

These crimes, if they were crimes, were committed on what is legally U.S. soil by U.S. citzens. There is no way that these people will, or should, be tried in the Netherlands for these crimes. U.S. law requires that U.S. citizens be tried before a jury of their peers. The World Court does not meet that standard. Call it American arrogance if you want. I sleep pretty well at night knowing that I will not be dragged out of my house and tried in a foreign country.

One could make the argument that taking the prisoners out of Iraq or Afghanistan was illegal. But that is a policy decision, not the act of an individual.

It's interesting that Fernando uses the term "rogue nation" here. The term rogue state is generally applied BY the U.S. government, to the dismay of most other countries. In fact, many critics of the US use the term to mean any country which opposes the US foreign policy.

roy said...

but Michael, what you seem to be saying is that once something is government policy, then individuals are not responsible for it. Couldn't that argument be made by Hitler? Pinochet? Every other government leader who tortured citizens?

And doesn't precedent show that when crimes against humanity are policy of a governent not only are the individuals who committed the acts guilty, but also the policy makers who put the policy in place?

So why international courts rather than US ones? 2 reasons. First off, we know that none of these folk would ever be tried in the US. 2. the crimes are not US crimes, they are literally crimes against humanity.

Michael Mahoney said...

People already have been tried in the US. And people are already serving prison terms for their acts at Gitmo, and I'm sure there will be more.

I think you'd have a hard time making the case that "crimes against humanity" were a specified government policy. I think you'd even have a hard time making the case that individual soldiers torturing individual prisoners constitutes "crimes against humanity." There was no genocide here, no ethnic cleansing.

However, statements like that are the exact reason that US citizens should be protected from the knee-jerk reactions of foreign governments kow-towing to foreign press. There is no way - none, zip, zero, that a US soldier would get a fair trial at the world court, and less so a government offical.

Then there is the concept that if a US offical is making a bad choice that he honestly believes is in the best interest of his country, then he should not be tried at the World Court for essentially doing his job, albeit badly. Allowing someone to stand trial in this case would be a clear violation of US federal law as well as the functional immunity doctrine of international law.

roy said...

OK, crimes against humanity may be overstating things...

the only folk who have been tried are low level folk like guards. They were sacrificed for the protection of folk higher up the ladder. The question is whether torture was US policy and if so, then somebody a lot higher up needs to be found guilty. That requires they be tried and I don't expect that would happen in US courts.

One piece that could be interesting is that international law precedent set in the Pinochet case would allow a judge anywhere outside of the US to have a US official arrested and tried if they set foot in their country. It could mean that Bush and his cronies had better never leave the US after they are out of office. If that happened, it would likely not be a fair trial and we'd have a serious international incident on our hands. Again, a trial in the world court would mitigate that possibility.

Michael Mahoney said...

That's a very good point, but it's doubtful that Bush would show up in a country that would allow that to happen anyway. Just because a court in, say, Afghanistan decided that, it is unlikely that officials in, say, Great Britain would do it.

Then there is the very real possibility that if whoever it was could get through a former president's security detail and actually arrest him, that we would simply go get him back.

Now, a lesser official, a former general or cabinet offical or DoD official, they could be in some real danger of this, we're they stupid enough to go to a country where they might be in danger.

fernando said...

The phrase "rouge state" became widespread after the fall of the Berlin wall, to describe countries that refused to conform to international protocols and generated regional instability. Of course, under the Bush doctrine it did come to mean just about anyone who doesn't tow the US line. The clue to that is not just in the countries that were labelled rogue (and then reprieved), but the countries that were threatened with that status.

Certainly some actions of the US in the last few years beg the question of what we mean by rogue nation, since they have been so singular and often defended with total contempt for international opinion. The US tarnishes its moral testimony when it holds other countries to standards (like co-operation, extradition, international treaty) it refuses to accept for itself.

It's a nice idea to claim that country will voluntarily put it's citizens to trial for international crimes. I sincerely believe the US will do this in the cases it has. But, the fact is many countries don't and without an international mechanism for doing so, we are all imperilled.